[1997/oagheade.htm]

 

OAG 97-11

April 22, 1997

Subject: City (Municipal Corporation) - Police Power -Regulation of Towing Companies - Rates

Written by: Thomas R. Emerson, Assistant Attorney General

Requested by: Rochelle E. Boland

Syllabus: Pursuant to its police power the Urban County Government has the authority to regulate the rates charged to the public by private towing companies when improperly parked vehicles are towed off private parking lots.

OAG cited: OAG 83-296

Statutes construed: KRS 189.725

Opinion of the Attorney General

We have been asked whether the Lexington Fayette Urban County Government has the authority to regulate the rates charged to the public by private towing companies when unauthorized cars (apparently, improperly parked vehicles) are towed off private lots pursuant to KRS 189.725 and various sections of the Urban County Code of Ordinances.

KRS 189.725 provides in part that any owner or attendant of a privately owned parking lot may have removed from that lot any unauthorized vehicle parked there. In addition, the operator of such a parking lot is required to post signs stating that the parking lot is privately owned and unauthorized vehicles will be towed away at the owner’s expense. There is no provision in KRS 189.725 pertaining to fees that may be charged by the towing firm removing the vehicle from the private parking lot.

In connection with KRS 189.725, note that in OAG 83-296, copy enclosed, this office concluded that only the owner or the attendant of the privately owned lot has the authority to order the removal of the unauthorized vehicle. The towing service is not authorized to remove a vehicle at its discretion nor are the owner and attendant permitted to delegate their authority to a third party.

Sections 14-85 through 14-94 of the Urban County Code of Ordinances deal with tow truck operators and their activities. While those provisions deal specifically with the towing of vehicles from private lots at the request of the owners of such lots, they do not regulate the rates charged to the public by the private towing companies.

In Worthington v City of Kalamazoo, 71 Mich. App. 646, 248 N.W.2d 654, 657 (1977), dealing with a towing and wrecker service municipal ordinance, the court said in part that, "Cities may also regulate trades and occupations within their boundaries so long as the regulation is not inconsistent with state and Federal laws."

Authority for a city to regulate an activity such as the towing of private vehicles arises from its police power. In 56 Am. Jur. 2d, Municipal Corporations, Etc., 471, it is stated in part in regard to municipal police power:

Municipal corporations under authorized grants of police power, emanating directly from constitutional provisions or from grants from the state legislature by way of specific charters or general state statutes, may regulate any trade, occupation, calling, or business, the unrestrained pursuit of which might affect injuriously the public health, morals, safety, comfort, or welfare, or that which might result in fraud or imposition on the public. The courts have stated that regulatory powers of such nature are so well recognized and established as to be beyond question. The mere fact that a business is lawful does not mean that a municipality has no power to regulate it under the police power. Furthermore, a municipal corporation, where a proper basis for discrimination exists, may regulate one trade and not another.

See, for example, the cases of George v City Council of Lebanon, Ky., 424 S.W.2d 588 (1968); Shaeffler v City of Park Hills, Kentucky, Ky., 279 S.W.2d 21 (1955); and Nourse v City of Russellville, 257 Ky. 525, 78 S.W.2d 761, 765 (1935), where the court said in part:

Under these conceptions of general subordination of private rights to public rights, we have no doubt that the city may enact laws to preserve and promote the health, morals, security, and general welfare of the citizens as a unit, and has a broad discretion in determining for itself what is harmful and inimical. It is sufficient if the municipal legislation has a real, substantial relation to the object to be accomplished, and its operation tends in some degree to prevent or suppress an offense, condition, or evil detrimental to public good or reasonably necessary to secure public safety and welfare.

The concept of the police power is discussed in 6A McQuillin Mun. Corp. (3rd Ed.), 24.09, where the following appears in part:

The police power is broad, dynamic, and, indeed, is one of the most essential powers of government, one that is the least limitable. The imperative necessity for its existence precludes any limitation upon it when not exerted arbitrarily, or unreasonably. Without doubt, the police power is not dependent upon the consent of those affected by it; theoretically, of course, there is consent of the government to law in our democracy.

Judicial utterances uniformly recognize that limitations upon the police power are difficult to define. However, while the power is not subject to accurate and precise statements of limitation, it may be said as a general rule that the police power is coextensive with the necessities of the case and the safeguarding of the public interest. Accordingly, the power extends to the promotion of the public convenience or the general prosperity, as well as the public safety, health, and morals. It is not limited to any particular object, and it extends to dealing with existing conditions so as to bring out of them the greatest welfare of the people.

There is a lengthy annotation in 97 ALR 3d 495 entitled Validity and Construction of Statute or Ordinance Regulating Vehicle Towing Business which you may find informative and useful. At pages 498-499 of the updated version of that annotation (1996) the author states in part that statutes and ordinances regulating the maximum fees chargeable for towing have been upheld as a proper exercise of the police power.

In Love Towing, Inc. v Beame, 93 Misc.2d 1064, 404 N.Y.S.2d 501, 505 (1978), the court said in part that, "The establishment of a rate structure for licensed towers is integral and necessary to the protection of the public and has not been shown to be without foundation."

The court, in Crane Towing, Inc. v Gorton, 89 Wash.2d 161, 570 P.2d 428 (1977), dealt with the constitutionality of a comprehensive statute relating to the towing or removing of motor vehicles from private property. Although there was no limitation on the amount per mile a towing firm could charge, there was a provision limiting the fee a towing firm could collect if the towing firm assessed a fee according to the number of miles a vehicle was towed. The court concluded that such a regulatory scheme is not unconstitutional as a deprivation of property without due process of law.

In Cade v Montgomery County, 83 Md. App. 419, 575 A.2d 744 (1990), U. S. cert. den. in 498 U.S. 1085, 111 S.Ct. 960, 112 L.Ed.2d 1047 (1991), the rates which a towing company could charge were limited to those maximum rates set by the county executive. While the validity of the comprehensive local ordinance regulating the towing of motor vehicles from private property without the consent of the vehicles’ owners was considered by the court, the rate structure was not specifically dealt with. The court mentioned that the catalyst behind the enactment of the ordinance was citizen complaints of excessive rates, little or no notice of which areas were off limits to parking, and difficulty in redeeming towed vehicles. The court concluded that the enactment of the county ordinance was a proper exercise by the county of the police power. At page 748 of its opinion the court said in part:

The actions of a municipality in the exercise of its police power will ordinarily not be interfered with unless they are arbitrary or patently unreasonable.

In conclusion, it is the opinion of this office that, pursuant to its police power, the Urban County Government has the authority to regulate the rates charged to the public by private towing companies when improperly parked vehicles are towed off private parking lots.

 

A. B. Chandler III

Attorney General

 

Thomas R. Emerson

Assistant Attorney General